JOHNSON COUNTY CIRCUIT COURT, NO. 36CR-12-39. HONORABLE WILLIAM M. PEARSON, JUDGE.
William M. Pearson, Attorney General.
PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF
In 2013, appellant Tommy Bowden was found guilty by a jury of first-degree murder of his mother and sentenced to life imprisonment without parole. On appeal, appellant did not challenge the sufficiency of the evidence. Instead, he argued that the trial court erred in granting the State's motion in limine and excluding the testimony of Dr. Bradley Diner, a psychiatrist. Appellant contended that Dr. Diner's testimony that he had a mental disease or defect should have been allowed as relevant in determining the occurrence of an " extreme emotional disturbance," as referenced in the statutory definition of manslaughter, because the defense had intended to request that the jury be permitted to consider manslaughter as a lesser-included offense of first-degree murder. We concluded that the " extreme emotional disturbance" necessary to satisfy the definition of manslaughter is not the type of disturbance that is internally caused by mental
disease or defect. We also rejected any argument that Dr. Diner's testimony was relevant to prove that an " extreme emotional disturbance" was caused by appellant being provoked to commit the murder based on his belief that his mother was poisoning him and his stepfather. We held that, because the circumstances surrounding the murder did not evidence that the murder occurred " in the heat of passion" or in the " moment following provocation," any such belief by appellant was not an event of provocation that could result in the type of disturbance that would reduce a homicide from murder to manslaughter. Appellant did not challenge on appeal the trial court's ruling that Dr. Diner's opinion failed to provide him with an affirmative defense of mental disease or defect. Bowden v. State, 2014 Ark. 168.
Appellant subsequently filed in the trial court a timely, verified pro se petition for relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013), alleging that he had not been afforded effective assistance of counsel and that he was denied a fair trial stemming from a motion to change venue. The trial court denied the petition without a hearing. Appellant timely lodged this appeal. Now before us are appellant's motions for extension of time to file his brief.
We need not consider the merits of the motions because it is clear from the record that appellant could not prevail if an appeal were permitted to go forward. An appeal from an order that denied a petition for postconviction relief will not be allowed to proceed where it is clear that the appellant could not prevail. Jordan v. State, 2013 Ark. 469 (per curiam); Holliday v. State, 2013 Ark. 47 (per curiam); Bates v. State, 2012 Ark. 394 (per curiam); Martin v. State, 2012 Ark. 312 (per curiam). Accordingly, the appeal is dismissed, and the motions are moot.
A review of the petition and the order reveals no error in the trial court's decision to deny relief. When considering an appeal from a trial court's denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.
The benchmark for judging a claim of ineffective assistance of counsel must be " whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that
counsel was not functioning as the " counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel's conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, " the outcome of the trial," refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. ...